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Justices OK Juror Challenges Involving Prosecutor From Controversial Training Tape
The Legal Intelligencer
August 05, 2008
The Pennsylvania Supreme Court has found that a death row defendant does not deserve a new trial on the alleged grounds that the prosecutor made peremptory challenges to jurors based on race, despite the fact that the prosecutor was videotaped a year before the trial giving advice to fellow prosecutors on how to get away with such illegal peremptory challenges.
The four-member majority in Commonwealth v. Cook, including Chief Justice Ronald D. Castille and Justices J. Michael Eakin, Seamus P. McCaffery and Debra Todd, found in its July 24 opinion that Philadelphia Common Pleas Judge Carolyn E. Temin correctly determined that defendant Robin Cook didn't meet his burden to prove that Assistant District Attorney Jack McMahon had exercised his peremptory challenges during Cook's 1988 trial in a discriminatory manner.
"Appellant was required to establish a prima facie case of purposeful discrimination in certain peremptory challenges made by the Commonwealth before the Commonwealth was required to provide race-neutral reasons for those challenges," Castille wrote for the majority.
"Once the Commonwealth provided such reasons, the burden returned to appellant to dispute the persuasiveness of those reasons ... After deeming McMahon's explanations both race-neutral and credible, the court concluded that '[t]he defendant had failed to carry the burden of showing that the prosecutor exercised his peremptory challenges in a discriminatory manner.' ... Therefore, it is clear that the PCRA court properly applied the burden-shifting framework of [the U.S. Supreme Court's decision in Batson v. Kentucky] and appellant's allegation of analytical error is meritless."
Castille was district attorney during the time that McMahon was an assistant district attorney. The 1987 McMahon training videotape was first released by Philadelphia District Attorney Lynne Abraham's office in April 1997 when McMahon was running against Abraham for district attorney, Castille said.
Cook's attorney, Jules Epstein of Kairys Rudovsky Messing & Feinberg, and Hugh J. Burns Jr. of the Philadelphia District Attorney's Office, said they did not ask for Castille to recuse himself.
Epstein said that his office is considering asking the Supreme Court to reconsider its decision.
Justices Thomas G. Saylor and Max Baer dissented, arguing that McMahon's comments on the training videotape show that he used illegal peremptory challenges to strike jurors because of their race or gender and advocated coming up with pretextual justifications to hide the true reasons for those challenges.
Saylor quoted an excerpt of the training videotape in which McMahon said: "'If you go in there and any one of you think you're going to be some noble civil libertarian and try to get jurors, 'Well, he says he can be fair; I'll go with him,' that's ridiculous. You'll lose and you'll be out of the office; you'll be doing corporate law. Because that's what will happen. You're there to win.'"
Cook argued in his PCRA claim that McMahon violated the 1986 U.S. Supreme Court's precedent in Batson v. Kentucky prohibiting the consideration of race and gender in peremptory challenges, Castille said. The Batson ruling prohibits a prosecutor from challenging jurors solely based on their race because it is a violation of the U.S. Constitution's equal protection clause.
Cook alleged McMahon violated Batson during his 1988 trial by failing to provide a race-neutral reason for striking three blacks, giving "pretextual reasons" for striking two blacks, and striking black mothers from the potential jury, while not striking white mothers or black women without children, the majority's opinion said.
The commonwealth, the opinion said, argued that the PCRA decision should be upheld because McMahon didn't exhaust his peremptory challenges even though the jury included several blacks, and 13 years after the trial McMahon was able to credibly provide race-neutral reasons for most of his peremptory challenges.
The PCRA judge denied Cook a new trial after reviewing McMahon's testimony about his peremptory challenges during Cook's trial, Castille said.
Temin found that McMahon gave credible race-neutral answers about his reasons for striking 10 of the black potential jurors and that the majority of the 12 jurors were black.
According to a footnote in Castille's opinion, the commonwealth said there were eight black jurors on Cook's jury and that the trial court mistakenly identified one black juror as white; Cook's counsel did not dispute that there was a misidentification of the race of one juror.
McMahon used 14 of his 19 peremptory challenges against potential black jurors, Castille wrote. He struck 14, or 58 percent, of the 24 potential black jurors he could strike, and he struck five, or 18 percent, of the potential white jurors he could strike, Castille said.
Castille wrote that the court's standard of review was limited to "examining whether the court's findings of fact are supported by the record and whether its legal conclusions are free of error."
Castille noted that such a standard is necessary because the trial judge is best able to make an in-person determination of a prosecutor's credibility, while an appeals court is only reviewing transcripts from voir dire.
A Batson claim first requires that the defendant make a prima facie demonstration leading a judge to infer that the prosecutor removed jurors for racial reasons, Castille said. The burden then shifts to a prosecutor to offer a race-neutral explanation for striking the jurors. If a race-neutral explanation is offered, then the judge must determine if the defendant has met the burden of proof of purposeful discrimination.
The majority in Cook said that while Cook met his prima facie burden, McMahon was able to offer credible, race-neutral explanations for 11 of the 14 black potential jurors he challenged.
Castille said that McMahon struck four potential black jurors because of their equivocation about the death penalty; four potential black jurors because of their employment situations; one potential black juror because of a crisis in her life; and struck another potential black juror who knew a witness.
The majority also agreed with Temin that Cook didn't prove under the Batson standard that McMahon offered pretexts for striking a 24-year-old black student living with her unemployed mother and for striking a black man who might have been fired from his job at PECO. McMahon didn't pretextually strike them for being unemployed, Castille said, because he also gave the additional reason that these jurors appeared to have unstable lives.
Saylor, however, said that in light of McMahon's comments that he questioned potential black jurors in a way to develop "pretextual race-neutral explanations for a race-based peremptory strike," the court has the right to scrutinize McMahon's explanations less deferentially than usual.
The McMahon tape undermines the persuasiveness of race-neutral explanations McMahon provided in Cook, he said.
Saylor also said that Cook had advanced direct evidence of "actual, purposeful discrimination," and thus the 1965 U.S. Supreme Court decision in Swain v. Alabama provided a more applicable framework than Batson.
"I believe that McMahon's recorded admissions concerning consistently applied unconstitutional practices and impermissible attitudes toward jury selection raise the question of whether there is any basis to believe that he experienced some change of heart that could have caused him to alter his approach to jury selection between the time he made the tape and the trial in the present case," Saylor said.
The justice added later, "To me, his comments were more in the nature of an attempt to recast or explain away, and there is simply no evidence of the necessary watershed change."
Even though McMahon's alleged concerns about stability led him to strike two black jurors, Saylor noted that McMahon accepted an unemployed white juror whose husband was laid off and whose daughter was a student, despite the concerns of stability this juror's situation might raise.
Putting McMahon-prosecuted cases through the Batson framework, Saylor also said, is producing inconsistent results from PCRA judges because "some judges find it significant that there are some peremptory challenges that McMahon simply cannot explain, and some do not; likewise, some judges attach a high degree of relevance to the fact that McMahon arguably engaged in disparate treatment of African American and Caucasian prospective jurors in a specific case, and some do not."
Epstein said the Cook case may not have a significant effect on new Batson cases because it "occurred in the context of a retrospective examination of prosecutor motive."
Burns said he also believes that the Cook ruling is very fact-specific, but he does think it gives guidance when a "prosecutor, who is required to explain peremptory challenges that happened many, many years ago, is not reasonably going to be held to the same standard" as required when the prosecutor must give reasons for peremptory challenges during a trial.
Cook was convicted Nov. 15, 1988, in a jury trial of first-degree murder, criminal conspiracy to commit murder, possessing an instrument of crime and robbery in the death of Alvin Tyler.
The Supreme Court also dismissed Cook's PCRA claims of ineffective assistance of counsel.
Justice Jane Cutler Greenspan did not participate in the case.
